The Court after Scalia: Would a liberal Supreme Court overturn Heller?

Posted Tue, September 6th, 2016 2:56 pm by Adam Winkler

Adam Winkler is Professor of Law at UCLA School of Law and the author of Gunfight: The Battle over the Right to Bear Arms in America.

District of Columbia v. Heller, which held that the Second Amendment guarantees an individual right to have a gun, is one of the most historic rulings of the Roberts Court. It was also one of the late Justice Antonin Scalia’s signature opinions, reflecting the jurist’s commitment to originalist arguments grounded in history. Writing for the majority in the controversial five-four decision, Scalia explained that the Second Amendment prohibited Washington, D.C., from outlawing the possession of handguns in the home for self-defense. Now that Justice Scalia has passed and his seat may well be filled by a Justice with more liberal views, like Merrick Garland, it is worth considering whether Heller will soon be overturned.

For many liberals, Heller is near the top of the list of Roberts Court decisions they would like to see reversed. And many conservatives are fearful it will be. Ever since Scalia’s death, Americans have heard warnings about how a new, more liberal Supreme Court will inevitably overturn this landmark Second Amendment ruling. Are they right?

As Yogi Berra famously said, “It’s tough to make predictions, especially about the future.” This is even more so on something like future decisions of the Supreme Court, when we don’t know the facts of the particular case or even the identity of the potentially deciding Justice. Nonetheless, there are several reasons to believe that even a Supreme Court with a liberal majority will not overturn Heller.

The first reason is that Heller’s impact on America’s gun laws has been very small. The decision struck down bans on handguns in the home, but Scalia’s opinion also made clear that many forms of gun control remain constitutionally permissible. Indeed, even though Heller triggered a wave of lawsuits challenging nearly every type of gun law, very few laws have been overturned. The lower federal courts have read Heller to allow, for instance, broad restrictions on concealed carry of firearms; bans on military-style “assault” weapons; bans on high-capacity magazines; restrictions on guns for domestic abusers; and a wide variety of other limits on gun ownership and possession. In other words, Heller poses no obstacle to anything on the agenda of the contemporary gun control movement.

So far, just about the only gun control laws prohibited by Heller are bans on handguns in the home. Those laws were unpopular before Heller – only two cities, Washington and Chicago, had banned handguns more than three decades ago – and none of the gun control movement’s major players are pushing to reinstate such bans. For supporters of gun control, which presumably would include the liberal Justices, Heller does not present a constitutional barrier to any of the laws they hope to see enacted.

While there is little for liberal supporters of gun control to gain from overturning Heller, there is much for them to lose. Such a ruling from the Supreme Court would undoubtedly spark a serious backlash. Few issues inspire more political activism than gun rights, and the National Rifle Association and its allies would immediately begin calls to amend the Constitution to provide stronger protections for gun rights. While most calls for a constitutional amendment are quixotic, if anyone could muster the nationwide strength to ratify one it is the gun rights community. And you can be sure any amendment supported by the NRA would provide for much greater protection for guns than Heller.

We have already seen the strengthening of gun rights through constitutional amendment at the state level. In response to deferential court rulings on gun control under state constitutional law, the NRA has won new amendments to the Louisiana and Missouri constitutions. These provisions require courts to apply “strict scrutiny” – constitutional law’s most difficult test – to gun control laws. Under Heller as read by the lower courts, most gun laws warrant only intermediate scrutiny. The NRA would use Heller’s reversal as occasion to raise the constitutional hurdle to all gun laws. If so, overturning Heller might lead paradoxically to the strengthening of gun rights.

The Justices know the political power of the NRA and, as the marriage cases of the past few years revealed, they are concerned about the possibility of a popular backlash to their rulings. When first confronted with the constitutional right to marriage equality in Hollingsworth v. Perry, the California same-sex marriage case, the Justices hesitated. Justice Ruth Bader Ginsburg made a thinly veiled speech about the backlash to Roe v. Wade, the abortion decision, which was widely understood to reflect the liberal Justices’ concern that too broad a ruling on marriage might be rejected by the people. And, when it came time to decide Hollingsworth, most of the liberal Justices voted for a half step that allowed same-sex marriage in California without declaring a nationwide right.

Earlier this year, after Scalia’s death, the liberal Justices signaled that they are not aggressively seeking to overturn Heller in a Second Amendment case involving bans on stun guns, Caetano v. Massachusetts. The Court’s per curiam opinion reversed a Massachusetts court ruling that held stun guns were not arms protected by the Second Amendment. Not only did the Court’s decision, supported by the liberal Justices, affirm Heller, but it was also the first Supreme Court case to broaden Heller to apply to weapons other than handguns. If the liberal Justices were so determined to overturn Heller, they could easily have voted to affirm the Massachusetts decision. Instead, they voted the other way. Caetano was perhaps only a small step but it was clearly in opposite direction from overturning Heller.

Of course, a liberal Supreme Court is not likely to expansively read Heller in ways desired by the NRA. A liberal majority will not, for instance, overturn restrictive concealed-carry permitting policies or strike down bans on high-capacity magazines. Yet those laws were not likely to be overturned even when Scalia was alive. Over the past few Terms, the Supreme Court had numerous opportunities to review the constitutionality of such laws, which have been upheld by the federal courts of appeals. In each instance, however, there were not even four votes to take the case. Heller was being read narrowly even when the Roberts Court had a conservative majority. In this instance, at least, the more things change the more they remain the same.

Those who believe a liberal Supreme Court would overturn Heller see the Justices as playing checkers when in fact they are playing chess. Even if the liberal Justices have no taste for gun rights, they are not going to overturn Heller in a fit of passion. The Justices understand the long game and they know that whatever they decide about the Second Amendment is not the final word. Their decision will be digested by We the People – and, if the Court goes too far, it will be rejected. As a result, we can expect to see Heller remain the law of the land for the foreseeable future no matter who fills Justice Scalia’s seat.

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On November 13, Justice Sonia Sotomayor, Judge Jennifer Walker Elrod of the U.S. Court of Appeals for the 5th Circuit and Judge Susan Carney of the U.S. Court of Appeals for the 2nd Circuit presided over the final round of the 2018 Ames Moot Court Competition at Harvard Law School.